carrying out of Articles 5 and 6 of the definitive Treaty of 1763. There are other alterations in the Commission. It was necessary, of course, in obedience to what His Majesty had said, and also in consequence of the facts, to introduce Labrador ; and the way in which that is done is this, that at two or three places, in the course of the Commission, they add the words “all the coasts of Labrador ” to “Newfoundland” in the terms of the Commission.
But it surely is of great moment to observe with what purpose and intent that was done. I shall have some comments to make a little later on upon what was the ambit of his duty as the Governor of Newfoundland, apart altogether from Labrador ; but it is manifest that this fishery question, which absorbed the attention of the Lords of Trade at the very outset, and which they thought that they had disposed of in this manner, was a totally different class of subject from the subject to which they proceeded to address themselves when they came to the parcelling out of the Continent of Canada. That was not what they were thinking of at this time at all, and yet the suggestion made by my learned friend is that being minded to do what they were minded to do as they have told us here, they, by these documents, carved out of the Continent of Canada—and I use it in its widest possible extent just now—they carved out of the mainland of Canada a large area, an administrative area, defined by ascertained or ascertainable metes and bounds, and constituted in that way an entirely new governmental territory on the mainland of Canada, comparable to Quebec or any of the other governmental areas which were subsequently delimited with such care, and entrusted the government of the whole territory, through the means of this instrument, to the Governor of Newfoundland, in the same way as they entrusted the whole of the Quebec Territory to the Governor of Quebec.
Your Lordships will see in the sequel how very differently the Lords of Trade and the authorities addressed themselves to the question of the parcelling out of Canada, in contradistinction to the way in which they addressed themselves to the question of the regulation of the fisheries, in the Commission to Captain Graves.
I am very anxious to make that point, in order that your Lordships may appreciate it in its due proportions. Humbly, it appears to us to be a matter of very great assistance in considering whether or not, before the Government had addressed itself to the question of territorial jurisdiction of the mainland at all, and before they had set the bounds to the Province of Quebec or the other Provinces that were the result of the Proclamation, it had first of all made what was in effect a new provincial Government in Labrador and entrusted its administration to the Governor of Newfoundland.
That is the length and breadth of the claim that is now submitted, namely that this was a complete territorial disposal of this large area, and confided to the Governor of Newfoundland a territorial administration, three times the size of the Island of Newfoundland which was already under his jurisdiction. One would not have thought that that
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was very probable, nor does it appear from the documents themselves that those who framed them had any such conception as that that was the result of what they had done.
These are the documents which precede the issue of the Commission, and the Commission, if your Lordships will have the calendar in front of you, followed very soon after. It followed on the 25th April, 1763. I shall recur both to the Commission and to the Instructions, but you will see that this Commission on page 149, in Volume I, again contains little novelty, except, of course, the addition, wherever it is necessary, to “the Island of Newfoundland,” of “all the Coasts of Labrador,” and the usual phrase which follows ; that is to say, the limits are defined. But so far as the Commission itself is concerned, the formal executive document, as distinguished from the instructions to this gentleman as to what he was to do on these coasts, there is no significant alteration, so far as I am aware, upon the Commission which he had as Governor of Newfoundland, except the introduction at appropriate places of the new limits.
You will find on page 149, in the words of appointment, that whereas in the recital his previous appointment had been that he was to be “Governor and Commander in Chief in and over Our Island of Newfoundland,” it is now stated in this way : “ Our Governor and Commander in Chief in and over Our said Island of Newfoundland and all the Coasts of Labrador from the Entrance of Hudson's Streights to the River Saint Johns which discharges itself into the Sea nearly opposite the West End of the Island of Anticosti including that Island with any other small Islands on the said Coast of Labrador and also the Islands of Madelaines,” and so on.
Then I think you will find that over the page there is another reference to Labrador. That is with regard to all Our efforts and Garrisons Erected and Established or that shall be Erected and Established in Our said Islands of Newfoundland ”—then, of course, there are included the new ones—“ Anticosti and Madelaine,” and it goes on : “ or on the Coast of Labrador within the Limmitts aforesaid.” Then it says that he is to conform to the Instructions : and then I think Labrador is introduced again at line 19, where it says that he is to administer the oath to persons who “ pass into Our said Islands or shall be resident or abiding there,” and then, of course, it was necessary to put in Labrador, and so it says ; “ or upon the Coast of Labrador within the Limmitts aforesaid.” Then you have the words “ the said Island and Coasts,” and then you have a very important direction, which is fundamental to the duty of the Governor of Newfoundland, that he is to conform himself in every way to the Act of 1699, which is the Fishery Act. Then he is given certain powers, and he is to aid “ the Commander of Our Ships of War,” and so on, and to help the various Admirals. Those are not the Naval Admirals, but the Admirals who got their rather quaint title by being first on the scene. He is to help them in carrying out “ the several good Rules and Orders prescribed by the said Act for encouraging the Trade to Newfoundland.” That is the Act previously referred to.
Viscount HALDANE : Those are the merchant commanders.
Mr. MACMILLAN : Yes, my Lord. “ The Trade to Newfoundland ” is a well recognised phrase ; it occurs constantly ; and that trade is, in our submission, the cod fishing trade carried on by ships which came from the West Coast of England, spent the summer in Newfoundland, and returned with their catch.
Lord WARRINGTON : But this is clear, is it not, that whatever authority he had as Governor of Newfoundland, he had as Governor over “the Coast of Labrador,” whatever that phrase means ?
Mr. MACMILLAN : I think that must be so, my Lord.
Lord WARRINGTON : That is so. Whatever authority, territorial or otherwise, he had in the Government of Newfoundland, he also had over whatever it was that was added to his governorship.
Mr. MACMILLAN : Yes, my Lord.
Lord WARRINGTON : It is exactly the same.
Mr. MACMILLAN : Yes, my Lord ; and perhaps I might just say at once something which may possibly help a little. A certain amount of confusion has I think arisen in this way, that it has been suggested that certain acts by the Governor of Newfoundland on the coast of Labrador in some way or other are inconsistent with my case. Of course, they are not inconsistent with my case, because we accept the position that the Governor of Newfoundland had a jurisdiction on the coast of Labrador which was a real jurisdiction. I will say something about that in a minute or two ; but that he had a jurisdiction on the coast of Labrador is, of course, conceded on both sides here. The whole question is, how far inland it extended. A great many of the acts which have been referred to, and which are not indeed historically recorded in these volumes, are acts which are not in the least significant for our present purpose, because, indeed, the Governor of Newfoundland would have been remiss if he had not done those acts. Therefore we are back again at the question—
The LORD CHANCELLOR : Of how far in it extended.
Mr. MACMILLAN : Yes, my Lord, exactly.
The LORD CHANCELLOR : It is material to observe how far in the acts were done.
Mr. MACMILLAN : Yes, my Lord ; and that is exactly what I want to bring out. There are, I am afraid, hundreds of pages there,
telling your Lordships about acts which have been done ; but when you come to discriminate, and to eliminate those which we admit were proper things for the Governor of Newfoundland to do (that is to say, which were referrable to the “ coast,” whatever that means), you will find that those which relate to matters penetrating into the interior of this Province are exceedingly few and far to find. My learned friend, Sir John Simon, mentioned several of them, and I think he rather gave your Lordships the impression that they were samples chosen at random from a bulk ; but in our humble submission they are practically the whole of the instances. I knew them all, and I listened with interest to their being brought out one after the other ; but so far from being samples from bulk. they constituted, I think, practically the whole of the ones that I had also noticed as being significant in any way of a penetration by the Governor—whether legitimate or not is another question—beyond what I might call a coastal jurisdiction.
I wanted to make that observation, because one is so apt, I think, to assume here, perhaps against me, that we are seeking to drive Newfoundland into the sea. That is not the position which we take up at all. The whole question is, how far inland does this undoubted jurisdiction, which was a jurisdiction accompanied no doubt with the same powers as the Governor had in Newfoundland territory—how far does it extend ? Therefore, with great respect, it does not dislodge me from my position to say that he had, with regard to what was added at this time to him. the same powers as he had with regard to his original territory of Newfoundland.
But it is significant to observe, in connection with the question of what was the depth inland, with what mind those powers were given to him. It was a new area. whatever it was, but why were those powers given to him, and with what end ? If your Lordships accept the submission that I am making, that the whole purpose of this matter was— as I think I have vouched from the documents—to fulfil and to carry into execution the Fishery articles of the Treaty of Paris, then you get what I venture to think is an exceedingly valuable pointer to the extent of the territory which was confided to the Governor of Newfoundland to
be administered by him along with his original jurisdiction of the Island of Newfoundland.
That is, in my humble submission, the real significance of this chapter of the case, and therefore I do not in the least flinch from the fact that the coast of Labrador was added as an adjunct to the Island of Newfoundland ; but it is of the greatest moment to see with what object that was done, and it is also of the greatest importance to see why the Governor of Newfoundland was selected for that. I shall submit later on, when we examine the position of the Governor on these documents, that he was selected because he was just the person, having regard to his existing powers and experience, to whom the carrying out of these provisions of the Treaty might best be confided by this means of giving him a coastal jurisdiction over Labrador. Your Lordships see the scheme upon which I propose to develop this line.
Lord WARRINGTON : We have not got his original Commission as Governor of Newfoundland, have we ?
Mr. MACMILLAN : I asked for that, and I could not get it, my Lord.
Lord WARRINGTON : It looks as if the only alteration made in the new Commission was to introduce the expression describing the coast of Labrador, whatever that is.
Mr. MACMILLAN : Yes, my Lord. I think I can help your Lordship with regard to that, because I had the same research. It occurred to me that it would be interesting to see whether, as often happens, these people, in putting words in of extension, did so without quite seeing what they were doing. We have one document among the papers. There is a Commission to Francis William Drake, a Governor of Newfoundland, printed in Volume IV, at page 1844. That is the only one that I can find. The date of it is 1750, and it is therefore quite a good date to take. It is thirteen years before this. It might have been better if we could have got the actual one which was recited.
Sir JOHN SIMON : It could be got, I think.
Mr. MACMILLAN : No doubt it could. It would be useful, just to see what the draftsmen had done.
Viscount HALDANE : We know the date of the first one.
Mr. MACMILLAN : Yes, my Lord, Graves's first Commission is recited. It was dated the 29th May, “ in the first year of our reign,” which would be 1760, so that the date is the 29th May, 1760, three years before ; but I have looked through this one which is on page 1844 of Volume IV, and I cannot find any great novelty in the Commission to Captain Graves after 1760 other than the introduction at the appropriate places of “ Labrador.” I think that is fair ; I would not like to commit myself to it, because I have not had them read over textually, but that is my impression, that it was just a case of taking the existing Commission, and then, where it was appropriate, putting in the words “ the Coasts of Labrador,” with the definition.
Lord WARRINGTON : It merely emphasises the position that whatever authority he had given to him by the Commission over Newfoundland, he also had given to him over “the coasts of Labrador,” whatever that expression means.
Mr. MACMILLAN : Yes, my Lord. I do not think any point will arise between us upon that, because he had undoubtedly some jurisdiction. The limits of it are a different matter, of course.